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EXHIBIT 10AP
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Assignment"), dated as
of the 10th day of December, 1996 (the "Effective Date"), by and among FIRST
UNION NATIONAL BANK OF MARYLAND (the "Assignor"), THE XXXXXX XXXXX BANK, N.A.
(the "Assignee"), and PIKE SHOPPING CENTER LIMITED PARTNERSHIP (the "Lessor"),
recites and provides:
RECITALS:
By Lease (the "Lease"), between the Lessor (as landlord) and the
Assignor, successor to The Bank of Baltimore (as tenant), the Lessor leased to
the Assignor certain real estate located in the County of Xxxxxxxxxx, Maryland,
and more particularly described in the Lease (the "Leased Premises"). A true and
complete copy of the Lease is attached hereto as Exhibit "A". Under the terms of
the Lease, the Assignor may not assign its interest in the Lease except with
the prior written consent of the Lessor.
The Assignor now wishes to assign and transfer to the Assignee all of
the Assignor's right, title, and interest in and to the Lease. The Lessor is
willing to consent to such assignment on the terms and conditions set forth
herein.
ASSIGNMENT AND ASSUMPTION AGREEMENT:
FOR and in consideration of the premises, the mutual covenants and
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Assignment. Effective as of the Effective Date, the Assignor hereby
assigns and transfers to the Assignee all of the Assignor's right, title, and
interest in and to the Lease for the
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remainder of the term thereof (including any rights to renew the Lease or extend
the term thereof), subject to the rental, terms, covenants, and conditions of
the Lease. Notwithstanding the foregoing, however, the Assignee shall have the
right to terminate this Assignment on or before thirty (30) days from the
Effective Date (the "Regulatory Approval Period") in the event the Assignee is
not able to obtain, or is denied, approval from the Office of the Comptroller of
the Currency and/or the requisite regulatory agency of the State of Maryland
(collectively, the "Regulatory Approvals") before the expiration of the
Regulatory Approval Period. The Assignee shall exercise due diligence to obtain
the Regulatory Approvals. The Assignee shall have the further right to terminate
this Assignment on or before thirty (30) days from the Effective Date (the
"Environmental Review Period") in the event the Assignee determines within the
Environmental Review Period, in the exercise of reasonable discretion and based
upon an environmental audit of the Leased Premises, that hazardous materials are
located in, on or under the Leased Premises, in violation of local, state or
federal laws. The Lessor executes this Assignment to grant to the Assignee
complete access to the Leased Premises for the purpose of conducting such
environmental audit, provided that the Assignee repairs any damage to the Leased
Premises caused in connection with such environmental audit. The Assignee shall
indemnify and hold the Lessor harmless from and against all costs, expenses, and
liabilities incurred by the Lessor in connection with the environmental audit
conducted by the Assignee and the Assignee's entry upon the Leased Premises
pursuant to this paragraph.
2. Condition of Premises. Within ten (10) days of the Effective Date, the
Assignor shall inspect the HVAC system and the bathroom fixtures within the
Leased Premises and shall make such repairs thereto as the Assignor deems
reasonably necessary to ensure that the same are in good working condition as of
such date. The Assignee acknowledges that it has had and, prior to the
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Effective Date, shall have an opportunity to examine the Leased Premises.
This assignment and transfer is made "as is" and, except as expressly provided
in this Assignment, there are no warranties, express or implied, with respect to
the Leased Premises.
3. Representations and Warranties. The Assignor and the Assignee each
represent and warrant to the other that (a) it has full power and authority to
execute and deliver this Assignment, and (b) the execution and delivery hereof
and the terms and obligations hereof do not contravene any agreement to which it
is a party or by which it or the Leased Premises is bound. The Lessor (except as
to subparagraph (iv) below) and the Assignor represent and warrant to the
Assignee: (i) that the Lease is in full force and effect, (ii) that to the best
of their knowledge, there exists no event of default thereunder on the part of
either the Assignor or the Lessor, (iii) that to the best of their knowledge,
there exists no event which with the giving of notice or the expiration of any
applicable cure period would constitute an event of default by either the
Assignor or the Lessor under the Lease, and (iv) that the Leased Premises as of
the Effective Date contains among other equipment, the following items (as they
were on September 6, 1996, the date the Assignor and the Assignee walked through
the Leased Premises): (a) a drive through banking facility, (b) one night teller
safe, and (c) undercounter teller equipment.
4. Indemnity by Assignor. Subject to the provisions of paragraph 2 of this
Assignment, the Assignor covenants to hold the Assignee harmless from and
indemnify the Assignee for any loss, damage, cost, or expense (including
reasonable attorneys' fees) arising out of any failure of the Assignor to
perform any of its obligations under the Lease up to and including the Effective
Date. Notwithstanding the foregoing, except as expressly provided in paragraph 5
of this Assignment, Assignor (as between Assignor and Assignee) shall have no
responsibility with respect to any of the obligations under the Lease from and
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after the Effective Date. Nothing contained in this paragraph 4 shall be deemed
to be a release by Lessor of Assignor from its obligations under the Lease.
5. Acceptance, Assumption, and Indemnity by Assignee. The Assignee (a)
accepts the assignment of all of the Assignor's right, title, and interest in
and to the Lease, (b) agrees to be bound by all of the terms, covenants, and
conditions thereof, and (c) assumes the obligations of the Assignor under the
Lease from and after the Effective Date; provided, however, that the Assignee's
obligation to pay rent under the Lease shall not commence until sixty (60) days
after the Effective Date and during such sixty (60) day period the Assignor
shall pay rent under the Lease. The Assignee covenants and agrees to perform
each term, covenant, and condition directly for the benefit of the Lessor and to
hold the Assignor harmless from and indemnify the Assignor for any loss, damage,
cost, or expense (including reasonable attorneys' fees) arising out of any
failure of the Assignee to perform any of its obligations under the Lease from
and after the Effective Date. Notwithstanding the foregoing, Assignee shall have
no responsibility with respect to any of the obligations under the Lease up to
and including the Effective Date or at any time after the date Assignee
terminates this Assignment, if it terminates this Assignment pursuant to
paragraph 1 hereof
6. Consent of Lessor. The Lessor executes this Assignment to evidence
its consent to the assignment effected hereby; provided, however, that such
consent shall neither be nor be deemed to be a consent to, or a waiver of the
necessity of obtaining the consent of the Lessor to, any proposed future
assignment.
7. Modification of Lease. The Lessor and the Assignee further execute
this Assignment to modify the Lease, effective as of the Effective Date (and
provided Assignee does not terminate this Assignment as provided herein) as
follows:
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(a) The words "9:00 a.m. to 5:00 p.m. Mondays through
Saturdays" in paragraph 39 of the Lease are deleted and the words "9:00 a.m. to
5:00 p.m. Mondays through Fridays and 9:00 a.m. to 1:00 p.m. Saturdays" are
inserted in their place.
(b) Notwithstanding anything to the contrary contained in the
Lease, the Assignee shall be permitted, with the prior written consent of
Lessor, to renovate the Leased Premises, which renovation shall include (i)
replacement of the shake mansard roof with a standing scam metal roof, painted
red, (ii) painting the exterior of the Leased Premises white, (iii) replacement
of the drive through automatic teller machine, and (iv) painting, wall papering
and redecorating the interior of the Leased Premises.
(d) Notwithstanding anything to the contrary contained in the
Lease, and subject to paragraph 20 of the Lease, the Assignee shall have the
right to place its sign in the dedicated pylon sign previously used by the
Assignor.
(e) Notwithstanding anything to the contrary contained in the
Lease, the Assignee shall have the right from time to time, with the prior
written consent of Lessor, to replace the landscaping located at the corner of
Rockville Pike and Bou Avenue, with such plants and other materials as are
acceptable to the Lessor in the exercise of its reasonable discretion.
8. Change of Address. For all purposes under the Lease,
including, but not limited to paragraph 35 thereof, the mailing address for the
tenant thereunder shall be changed to the following:
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Xx. Xxxxxx Xxxxx
Assistant Vice President, Facilities Dept.
The Xxxxxx Xxxxx Bank, N.A.
0000 Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
9. Further Assurances. Each party hereto covenants and agrees to
execute and deliver, or cause to be executed and delivered, and to do or make,
or cause to be done or made, upon the reasonable request of any other party, any
and all instruments, papers, deeds, acts, or things, supplemental, confirmatory,
or otherwise, as may be reasonably required by such other party for the purpose
of effecting the assignment described herein.
10. Completeness and Modification. This Assignment constitutes the
entire agreement between the parties hereto as to the transactions contemplated
hereby and supersedes all prior discussions, understandings, or agreements
between the parties hereto.
11. Successors and Assigns. This Assignment shall bind and inure to the
benefit of the parties hereto and their respective successors and assigns.
12. Governing Law. This Assignment and all other instruments referred
to herein shall be governed by, and shall be construed according to the laws of
the State of Maryland.
13. Counterparts. To facilitate execution, this Assignment may be
executed in as many counterparts as may be required. It shall not be necessary
that the signature on behalf of both parties hereto appear on each counterpart
hereof, and it shall be sufficient that the signature on behalf of each party
hereto appear on one or more such counterparts. All counterparts shall
collectively constitute a single agreement. This Assignment shall not be
effective unless and until it has been executed by all parties hereto, which
must occur, if at all, on or before December 31, 1996.
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14. Incorporation by Reference. All of the Exhibits attached hereto or
referred to herein and all documents in the nature of such Exhibits are by
reference incorporated herein and made a part of this Assignment.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment to
be executed by their duly authorized representatives effective as of the later
of the dates of execution set forth below, which later date shall be the
effective date hereof and shall be inserted on page 1 of this Assignment.
ASSIGNOR:
FIRST UNION NATIONAL BANK OF MARYLAND
12/2/96 By: [SIG]
------------------------ ---------------------------
Date Its: V.P.
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ASSIGNEE:
THE XXXXXX XXXXX BANK, N.A.
11/26/96 By: [SIG]
------------------------ ---------------------------
Date Its: Pres
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LESSOR:
PIKE SHOPPING CENTER LIMITED PARTNERSHIP
12/10/96 By: [SIG]
------------------------ ---------------------------
Date Its: Partner
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STATE OF North Carolina
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County of Xxxxxx, to wit:
------- ---------
The foregoing instrument was duly acknowledged before me in the County of
------
Xxxxxx this 3 day of Dec., 1996, by , as Vice President
--------------, --- --- -------- --------------
of FIRST UNION NATIONAL BANK OF MARYLAND, a national banking association, on
behalf of the association.
/s/ XXXXXXXX X. XXXXXX
----------------------
Notary Public
My commission expires: 4/22/2000
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STATE OF Virginia
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County of Fairfax to wit:
------------ -----------------,
The foregoing instrument was duly acknowledged before me in the County
of Fairfax, this 26th day of November, 1996, by Xxxx Xxxxx, as President ------
------- --- -------- ---------- --------- of THE
XXXXXX XXXXX BANK, N.A., a national banking association, on behalf of the
association.
[SIG]
------------------------
Notary Public
My commission expires: 2/28/99
--------------
UNITED STATES OF AMERICA
DISTRICT of COLUMBIA, to wit:
The foregoing instrument was duly acknowledged before me in the District
---------
of Columbia, this 10th day of December, 1996, by Xxxxx X. Xxxxx ,
-------- ---- -------- ----------------
as General Partner of PIKE SHOPPING CENTER LIMITED PARTNERSHIP, a Maryland
limited partnership, on behalf of the partnership.
[SIG]
--------------------------
Notary Public
My commission expires: July 31, 1997
---------------------
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LEASE AGREEMENT
PIKE SHOPPING CENTER
LANDLORD: PIKE SHOPPING CENTER LIMITED PARTNERSHIP
TENANT: The Bank of Baltimore
TABLE OF CONTENTS
ARTICLE PAGE
1. Data Sheet .................................... 1
2. Demised Premises .............................. 1
3. Ingress and Parking ........................... 2
4. Condition of Premises ......................... 2
5. Lease Term and Surrender; Renewal Option ...... 2
6. Fixed Minimum Rent ............................ 3
[7. Percentage Rent]............................... 4
[8. Gross Revenue Reports]......................... 5
[9. Audit]......................................... 5
[10. Definition of Gross Revenues; Record Keeping].. 5
11. Taxes and Assessments ......................... 7
12. Laws and Ordinances ........................... 9
13. Furniture; Fixtures ........................... 9
14. Repairs; HVAC Contract ........................ 10
15. Tenant Alterations ............................ 10
16. Damage ........................................ 11
17. Eminent Domain ................................ 12
18. Roof Rights ................................... 13
19. Store Purpose; Trade Name ..................... 13
20. Signs ......................................... 13
21. Hours of Lighting ............................. 14
22. Parking and Common Use Area ................... 14
23. Utilities ..................................... 15
24. Trash ......................................... 15
25. Keep Clean .................................... 15
26. Hold Harmless ................................. 15
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27. Property at Tenant's Risk ............................... 16
28. Insurance Risk .......................................... 16
29. Landlord's Access ....................................... 16
30. Bankruptcy .............................................. 16
31. Default of Tenant ....................................... 17
32. Reletting ............................................... 18
33. Hold Over ............................................... 20
34. Subordination and Attornment ............................ 20
35. Notices ................................................. 21
36. Successors and Assigns .................................. 21
37. Subletting and Assignment ............................... 21
38. Not Partners ............................................ 22
39. Continuous Occupancy .................................... 22
40. Maintenance and Operation of Common Areas ............... 23
41. Cost of Maintenance and Operation of Common Areas ....... 23
42. Insurance ............................................... 24
43. Additional Rent; Late Charges ........................... 25
44. Quiet Enjoyment ......................................... 26
45. Transfer of Landlord's Interest; Landlord's Liability.... 26
46. No Waiver ............................................... 26
47. Partial Invalidity ...................................... 26
48. Rules and Regulations ................................... 27
49. Modification ............................................ 27
50. Estoppel Certificate .................................... 27
51. Waiver of Jury Trial .................................... 27
[52. Security Deposit]........................................ 27
53. Miscellaneous ........................................... 28
54. Hazardous Materials ..................................... 28
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LIST OF EXHIBITS
Exhibit "A": Common Area Maintenance Costs (See Section 41).
Exhibit "B": Rules and Regulations (See Section 48).
Exhibit "C": Declaration of Tender of Possession (See Section 4B).
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LEASE AGREEMENT
(Store Space in Pike Shopping Center)
THIS LEASE AGREEMENT (the "Lease") made this ____ day of ________________,
199__ , by and between PIKE SHOPPING CENTER LIMITED PARTNERSHIP, a Maryland
limited partnership, whose address is 0000 X Xxxxxx, XX, Xxxxx 000, Xxxxxxxxxx,
X.X. 00000 hereinafter designated "Landlord"); and The Bank of Baltimore, a
Financial Institution organized and existing under the laws of Maryland
(hereinafter designated "Tenant").
WITNESSETH
1. Data Sheet. This Article 1 is an integral part of this Lease and all of
the terms, dates and requirements set forth in this Article 1 are incorporated
in this Lease in all respects. In addition to the other provisions which are
elsewhere defined in this Lease, the following terms, whenever used in this
Lease, shall have the meanings set forth in this Article 1, subject to
adjustments thereto or more detailed definitions set forth elsewhere in this
Lease. If there is any conflict between any of the Lease provisions set forth in
this Article 1 and any other provisions of this Lease, the latter shall control.
(a) Leased Premises: The existing store premises known by street address of
00000 Xxxxxxxxx Xxxx, in Pike Shopping Center, Rockville, Maryland.
(b) Square Feet of Premises: Approximately 2,000 gross square feet of space.
(c) Tenant's Percentage Share of Real Estate Taxes: 2.69%.
(d) Tenant's Percentage Share of C.A.M. Costs: 2.69%.
(e) Lease Dates:
(1) Commencing: February 1, 1994
(2) Ending: January 31, 2004
(3) Renewal term: 1-5 Year Term
[(g) Percentage Rent Rate: _____paid quarter annually.]
[(h) Percentage Rent Base: As provided in Article 7(A) hereof.]
[(i) Dates quarter annual Reports are Due: the_____day of each_____,
__________, _________and_______, covering respectively the
immediately preceding calendar quarter, commencing for the first
such quarterly report on______________.]
[(j) Date Certified Annual Report is Due: The _____day of each______,
commencing_________________.]
[(k) Prepaid Sum, Upon Lease Execution:_____________.]
[(l) Lease Year: January 1, 1994 through the following December 31, 1994.]
(m) Minimum Annual Rent: As provided in Article 6(A).
[(n) Security Deposit:________________________.]
(o) Tenant's Trade Name: The Bank of Baltimore.
(p) Permitted Uses: Financial Services
2. Demised Premises. In consideration of all Tenant's undertakings
hereinafter set forth, including payment of rent as hereinafter specified,
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the
existing store premises now known by street address of 00000 Xxxxxxxxx Xxxx (the
"Leased Premises" mentioned above, also herein called the "demised premises" or
the "premises"), being one of a group of stores in the shopping center
development now known as PIKE SHOPPING CENTER (herein called the "Shopping
Center") situated at Bou Avenue and Rockville Pike in Xxxxxxxxxx County,
Maryland, said demised premises containing a mutually agreed area of
approximately 2,000 gross square feet of space.
3. Ingress and Parking. Landlord grants to the Tenant during the term
hereof a nonexclusive right of ingress and egress and free parking of vehicles
of the Tenant's customers in the Shopping Center parking areas, and including a
right for ingress and egress to and from the adjoining public streets, highways
and/or service area; subject to the provisions of Article 22 hereof.
Not withstanding the foregoing, tenant and its customers will continue to
be granted the exclusive right of parking in those spaces currently designated
as bank parking.
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4. Condition of Premises. (A) Tenant hereby accepts possession of the
premises in "as-is" condition, without the requirement or necessity of Landlord
to perform, pay for or provide any work, materials or services whatsoever.
Tenant has inspected the premises, and is fully satisfied with the condition of
the premises.
(B) Upon execution of this Lease, the parties shall join in
executing a Declaration in the form of Exhibit "C" annexed hereto, with all
blanks therein properly completed.
(C) When so notified by Landlord to do so, Tenant shall commence
performance of the work necessary to fully fixture, furnish and outfit the
premises for use and occupancy by Tenant for the purposes herein permitted; such
work ("Tenant's Work") to be performed by and at the sole expense of Tenant and
at no cost to Landlord, and in compliance with Section 15 and all other
provisions of this Lease. Tenant shall not commence performance of Tenant's Work
until notified in writing by Landlord to do so. Tenant shall complete Tenant's
Work and open for business at the premises, fully stocked and staffed and with a
complete line of Tenant's merchandise, within sixty (60) days after the date
Landlord tenders to Tenant possession of the demised premises.
(D) Landlord shall not be obligated to perform, provide or pay for
any work to prepare the premises for use or occupancy by Tenant or for conduct
of Tenant's business; it being agreed that all such work shall be done solely by
and at the expense of Tenant.
5. Lease Term and Surrender; Renewal Option. (A) The term of this Lease
shall be ten (10) years, commencing on February 1, 1994, and fully expiring
without notice of any kind at midnight on January 31, 2004. Tenant hereby
irrevocably waives all rights, under existing or future laws, to be notified by
Landlord that Landlord desires surrender of possession of the premises at the
aforesaid stated expiration date of the term hereof, and Tenant shall surrender
possession of the entire premises free of subleases and occupants and with all
of its merchandise and personal property removed therefrom by said expiration
date, and in good condition and repair, reasonable wear excepted, and with all
alterations made by Tenant removed unless otherwise directed in writing by
Landlord (the "Surrender Condition").
(B) Notwithstanding the aforesaid stated term of this Lease, it is
agreed that if Landlord or any successor in interest to Landlord hereunder
desires to demolish or perform major alterations to the Shopping Center
improvements or any substantial portion thereof (i.e., 50% or more of said
improvements) for the purpose of developing new improvements or renovations of
existing improvements, then in any such event Landlord shall have the right, at
its exclusive option and absolute discretion, to terminate this lease effective
as of the end of the ninth (9th) Lease Year (i.e., as of the 30th day of
March, 2002), or effective as of any date thereafter, as selected by Landlord,
by sending Tenant written notice (the "Termination Notice") at least two hundred
seventy (270) days before the date such termination hereof is to become
effective (the "Effective Termination Date"). The Termination Notice may be
given by Landlord at any time, provided same is given at least 270 days before
the Effective Termination Date. If Landlord gives the Termination Notice, then
(i) this Lease shall fully expire on the Effective Termination Date, and (ii)
Tenant shall continue to pay all Basic Rent, Percentage Rent and other sums
hereunder through and including the later to occur of (a) the Effective
Termination Date, or (b) the date Tenant surrenders to Landlord possession of
the premises in the Surrender Condition called for in Article 5(A) hereof, and
(iii) Tenant will surrender to Landlord exclusive possession of the premises in
the Surrender Condition by the Effective Termination Date.
(C) Provided that Tenant is not in Default under this Lease (as
defined in Section 31 hereof) not subject to any "Events of Bankruptcy" (as
defined in Section 30 hereof) either at the time of exercise of the renewal
option or at the commencement date of the renewal term, and that this Lease is
then in force, Tenant shall have the option to renew the term of this Lease for
one (1) renewal term of five (5) consecutive years, such renewal term to
commence on the day next following the last day of the initial term hereof;
subject to the following conditions. Tenant may exercise the renewal option only
by giving to Landlord written notice
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of such exercise at least two hundred seventy (270) days before the end of the
initial term. If Tenant fails to timely exercise the renewal option or is
precluded pursuant to the provisions hereof from doing so, then said renewal
option shall forever lapse. Except as otherwise expressly herein provided, the
renewal term shall be upon all terms and conditions of this Lease, except that
(i) the basic annual rental payable during the renewal term shall be as
specified therefor in Section 6(B) hereof for said renewal term, and (ii) Tenant
shall be limited to the one (1) aforesaid renewal option of five (5) years, and
(iii) Landlord shall not be required to perform or pay for or grant Tenant any
credits or allowances for any Landlord's Work or other work for the demised
premises during or in respect of the renewal term.
6. Fixed Minimum Rent. (A) Commencing with the Rent Commencement Date,
Tenant shall pay as fixed minimum annual rental for the premises during the term
hereof the following sums during the respective Lease Year indicated in the
following table (the "fixed minimum annual rental", the "Minimum Annual Rent",
or "Minimum Annual Base Rent"), such sums to be due and payable in equal monthly
installments during the respective Lease Year as specified below, namely:
Minimum Annual
Lease Year: Base Rent Monthly Installment
----------- --------- -------------------
(A) Initial Term 2/1/94 - 1/31/2004
2/94 - 1/95 1 $ 87,500.00 $ 7,291.66
2/95 - 1/96 2 90,125.00 7,510.41
2/96 - 1/97 3 92,828.75 7,735.72
2/97 - 1/98 4 95,613.60 7,967.80
2/98 - 1/99 5 98,482.01 8,206.83
2/99 - 1/2000 6 101,436.46 8,453.03
2/2000 - 1/2001 7 104,479.55 8,706.62
2/2001 - 1/2002 8 107,613.93 8,967.82
2/2002 - 1/2003 9 110,842.34 9,236.86
2/2003 - 1/2004 10 114,167.61 9,513.96
(B)Renewal Term
11 117,592.63 9,799.38
12 121,120.40 10,093.36
13 124,754.01 10,396.16
14 128,496.62 10,708.05
15 132,351.51 11,029.29
All such monthly installments of the fixed minimum rental shall be paid by
Tenant at the offices of Landlord's management agent, Gates Xxxxxx & Associates,
Inc. at Prosperity Plaza, 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx
00000, or payable to such other person or party which may be hereafter
designated in writing by Landlord; such sums to be paid in advance and without
deduction, set-off or demand therefor, with the first monthly installment to be
due and payable upon execution hereof, and each subsequent monthly installment
to be due and payable on the first day of each and every month following the
Rent Commencement Date during the term hereof. The covenants of Tenant herein to
pay fixed minimum annual rental, Percentage Rent and any additional rents or
other sums hereunder are separate and distinct covenants, and are not dependent
on any other provisions hereof; it being agreed that Tenant shall have no right
to set-off or deduct from said sums any claims or defenses it may allege or have
against Landlord.
(B) Except as may otherwise be specifically provided herein, all
installments of rent and all other sums hereinafter provided for as additional
rent shall be payable without notice or demand and without set-off, allowance,
counterclaim, abatement or reductions.
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(C) No payment by Tenant or receipt by Landlord of a lesser amount
than the monthly installment of Minimum Annual Rent or other charges herein
stipulated shall be deemed to be other than on account of the earliest
stipulated rent or other charges, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as rent or other sums be
deemed an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such rent or
other sums or to pursue any other remedy provided hereunder and/or at law or in
equity.
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11. Taxes and Assessments. (A) For the purposes of this Lease, the term
"Real Estate Taxes" means all taxes, rates and assessments, general and
special, levied or imposed with respect to the land, buildings, and improvements
located or built within the Shopping Center, including all taxes, rates and
assessments, general and special, and front foot benefit charges, levied or
imposed for school, public betterment, general or local improvements and
operations and taxes imposed in connection with any special taxing district. If
the system of real estate taxation shall be altered or varied and any new tax or
levy shall be levied or imposed on said land, buildings and improvements and/or
on Landlord in substitution for real estate taxes presently levied or imposed on
immovables in the jurisdiction where the leased premises is located, then any
such new tax or levy shall be included within the term "Real Estate Taxes".
Should any governmental taxing authority levy, assess or impose a tax, excise
and/or assessment, however described (other than an income or franchise tax)
upon, against, on account of, or measured by, in whole or in part, the rent
expressly reserved hereunder, or upon the rent expressly reserved under any
other leases or leasehold interests in the Shopping Center, as a substitute for
(in whole or in part) or in addition to any existing Real Estate Taxes on land
and buildings and otherwise, such tax or excise on rents shall be included
within the term "Real Estate Taxes".
(B) Landlord shall, in the first instance, be obligated to pay all
Real Estate Taxes. Tenant shall reimburse Landlord, in the manner provided in
paragraph (C) of this Article 11, as additional rent and in addition to Minimum
Annual Rent, Percentage Rent, and all other payments provided for herein, that
portion of the Real Estate Taxes equal to the product obtained by multiplying
such Real Estate Taxes by "Tenant's Percentage Share of Real Estate Taxes" as
set forth in the next sentence. The term "Tenant's Percentage Share of Real
Estate Taxes", for all purposes of this Lease, is hereby defined to be that
percentage set forth in Article 1(c) of the Data Sheet, which represents the
stipulated and agreed proportion that the total gross rentable square feet
contained within the leased premises bears to the total gross rentable square
feet contained within the Shopping Center.
(C) Landlord may notify the Tenant from time to time (and more
frequently than once in any one lease year, if necessary), in advance of the
amount of the actual or Landlord's estimate of Tenant's Percentage Share of
Real Estate Taxes for the next succeeding tax fiscal year, and Tenant shall
deposit monthly, at the same time and place as the payment of monthly
installments of Minimum Annual Rent, an amount equal to one-twelfth (1/12) of
such amount, such monthly deposits to be made in advance on the first (1st) day
of each month commencing with the Commencement Date. Any overpayment of Tenant's
[Percentage Rent] Share of Real Estate Taxes for any fiscal tax year shall be
credited to rent thereafter due and payable (or be refunded to Tenant at the
expiration of this Lease) and any balance of Tenant's Percentage Share not
covered by the accumulation of monthly deposits shall be paid by Tenant within
fifteen (15) days after Landlord's written demand. Landlord shall not be
required to keep said escrow deposits separate from its general accounts, and
any interest earned on said escrow deposits shall be and remain the property of
Landlord. To the extent that all or any portion of Real Estate Taxes are paid in
advance in the jurisdiction in which the Shopping Center is located, Tenant
shall also, on the Rent Commencement Date, reimburse Landlord for Tenant's
Percentage Share of that portion of the then current tax fiscal year's Real
Estate Taxes accruing after the Rent Commencement Date which have been paid by
the Landlord as of the Rent Commencement Date, together with an amount [equal to
the number of whole or partial months that have elapsed since the last due date
of Real Estate Taxes times one-twelfth (1/12) of Tenant's Percentage Share of
Real Estate Taxes] sufficient to bring current its Real Estate Tax escrow fund
as aforesaid.
(D) Reasonable expenses, including attorneys' fees, expert witness
fees and similar costs, incurred by Landlord in obtaining or attempting to
obtain a reduction of any Real Estate Taxes shall be added to and included in
the amount of any such Real Estate Taxes. Real Estate Taxes which are being
contested by Landlord shall nevertheless be included for purposes
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of the computation of the liability of Tenant under the above paragraph;
provided, however, that in the event that Tenant shall have paid any amount of
increased rent pursuant to this Article 11 and the Landlord shall thereafter
receive a refund of any portion of any Real Estate Taxes on which such payment
shall have been based, Landlord shall pay to Tenant the appropriate portion of
the net amount of such refund (i.e., net of all attorneys' fees and other
expenses incurred by Landlord to obtain such refund) provided that Tenant is not
in default under this Lease. Landlord shall have no obligation to contest,
object to or litigate the levying or imposition of any Real Estate Taxes, and
Landlord at its exclusive discretion and may settle, compromise, consent to,
waive or otherwise determine in its discretion to abandon any contest with
respect to the amount of any Real Estate Taxes without consent or approval of
the Tenant.
(E) Tenant will pay all property taxes and assessments on its
personalty, fixtures, equipment and other property installed or place in or upon
the demised premises and on improvements therein made by Tenant. If any of the
foregoing are assessed as part of the land or improvements situated within the
Shopping Center, Tenant shall pay to Landlord, within ten (10) days after
demand, the amounts of taxes levied thereon.
(F) If the expiration or termination date of this Lease shall not
coincide with the end of a Real Estate Tax fiscal year, then in computing the
amount payable under this Article 11 for the period between the commencement of
the applicable Real Estate Tax fiscal year in question and the expiration or
termination date of this Lease, Tenant's Percentage Share of Real Estate Taxes
for the applicable Real Estate Tax fiscal year shall be equitably apportioned
(on a per diem basis) so that Tenant shall pay only such portion of such Real
Estate Taxes as is attributable to the portion of such Real Estate Tax fiscal
year occurring during the term of this Lease. Tenant's obligation to pay Real
Estate Taxes under this Article 11 for periods within the term hereof or any
renewal or hold-over term shall survive the expiration and/or termination of the
term of this Lease.
(G) A tax xxxx or true copy thereof, together with any explanatory
statement of the area or property covered thereby, submitted by Landlord to
Tenant shall be conclusive evidence of the amount of taxes assessed or levied,
as well as of the items taxed.
12. Laws and Ordinances. Tenant will, at its own cost, promptly comply
with and carry out all orders, requirements and conditions now or hereafter
imposed upon it by the ordinances, laws and/or regulations of the federal
government and of the municipality, county and/or state in which the premises
are located (collectively, "Governmental Authorities"), whether required of the
Landlord or otherwise, and whether or not due to the conduct of Tenant's
business or otherwise (collectively, "Laws"). However, Landlord shall comply
with any orders affecting structural walls and columns (unless due to Tenant's
particular business or use of the premises or to any acts, omissions or
negligence of Tenant, its contractors, agents or employees; in any of which
latter events Tenant at its own expense will comply with Laws affecting such
elements). Tenant will defend, indemnify and save Landlord harmless from all
penalties, claims, and demands resulting from Tenant's defaults or negligence.
13. Furniture; Fixtures. Tenant shall have the privilege of installing,
subject to the written approval of the Landlord, which shall not be unreasonably
withheld, any furniture, fixtures and machinery necessary to the conduct of its
business and the same shall remain the property of the Tenant, provided the same
shall be removed by the Tenant before the expiration of its tenancy, and further
provided that in the event any damage is done to said premises or to other
elements of the Shopping Center in the installation, repair, use, operation or
removal of said furniture, fixtures or machinery, Tenant will promptly reimburse
Landlord for the cost of such repairs as are necessary to restore said premises
and improvements to their original condition, less ordinary wear and tear. In
the event of failure of Tenant to remove said furniture, fixtures and machinery
from said premises before expiration or termination of this Lease, it is agreed
that Tenant is abandoning said furniture, fixtures and machinery and same shall
become the property of Landlord, who shall have the right to use, remove or
dispose of said furniture, fixtures and machinery at the Tenant's risk and
expense.
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14. Repairs; HVAC Contract. (A) Tenant, at its own expense, shall at all
times keep the demised premises (including but not limited to maintenance of
exterior entrances, all glass and show window moldings) and all partitions,
doors, floors, walls, ceilings, fixtures, equipment and appurtenances thereof
(including but not limited to heating, ventilating and air conditioning
equipment, herein sometimes called "HVAC", and all electrical lines and
equipment, lighting equipment and plumbing lines, fixtures and equipment) and
all other elements of the demised premises, in good condition and repair and
including all maintenance, repairs and replacements of all such items and
elements promptly when and as necessary; except only for structural portions of
the premises which shall be maintained by Landlord, but if Landlord is required
to make repairs, maintenance or replacements to structural portions by reason of
Tenant's or Tenant's Permitees' unlawful or negligent acts or omissions to act,
Landlord may charge Tenant for and Tenant shall pay within five (5) days after
demand the cost of such structural repairs, replacements or maintenance as
additional rent. Tenant also agrees, at its own expense, to replace, with glass
of like kind and quality, all plate glass in the demised premises which shall be
damaged or broken from any cause, except where due to building settlement, and
to maintain at the sole cost of Tenant its exterior sign face, sign box and sign
lighting. The Tenant further agrees at its own cost and expense to keep in
effect during the Lease Term and any extensions or renewals thereof a full parts
and labor maintenance contract on the heating, ventilating and air conditioning
equipment, serving the demised premises, with a contractor licensed in this
area, such contract and contractor to be subject to Landlord's approval, which
shall not be unreasonably withheld. The Tenant agrees to provide the Landlord
with a copy of said contract within thirty (30) days after the Rent Commencement
Date, and thereafter before any such contract shall expire (but at least
annually). If Tenant shall refuse or fail to make or to complete with reasonable
dispatch any repairs required to be made by it or shall fail to maintain such
HVAC service contract, Landlord may make such repairs or cause them to be made
and/or obtain and maintain such contract, all at tenant's expense, and upon
demand Tenant shall pay the cost thereof to Landlord as additional rent.
(B) Landlord shall, at its expense, within a reasonable time after
receipt of written notice from Tenant, make all necessary repairs to the
structural portions of the premises, the roof and the exterior of the building,
excluding doors, windows and store front. Any such repairs necessitated by acts,
omissions or negligence of Tenant or its Permitees shall be promptly paid for by
Tenant to Landlord on demand. Tenant agrees to promptly notify Landlord of any
condition respecting such structure, roof or exterior that requires repair.
Landlord's obligation with respect to repairs to the demised premises shall be
only as expressly set forth in this Article 14.
15. Tenant Alterations. (A) Tenant shall not make any alterations,
modifications or changes to all or any part of the demised premises, either
exterior or interior, without Landlord's written consent. The consent of
Landlord to any proposed modification, alteration or changes shall not be
unreasonably withheld in the event they shall (i) be performed only within the
interior of the premises, and (ii) be non-structural, and (iii) not affect any
system serving other occupants within the Shopping Center. Landlord may
condition its consent upon Tenant's delivery to Landlord of a policy or policies
of worker's compensation, liability and property damage insurance, naming
Landlord and its management agent as additional insureds, in limits and with
coverage amounts and in companies acceptable to the Landlord. In the event of
any such approved work or changes, Tenant shall have all work done at its own
expense, and performed in a good and workmanlike manner, and such work shall in
no way be harmful to the structure or overload the electrical, plumbing, heating
or air conditioning or other facilities of the demised premises or the Shopping
Center. Requests for such consent shall be accompanied by plans stating in
detail precisely what is to be done. Tenant and Tenant's contractors (who shall
be licensed) shall comply with the building codes, regulations and laws now or
hereafter to be made or enforced in the municipality, county and/or state in
which said premises relocated and which pertain to such work. Any additions,
improvements, alterations and/or installations made by Tenant (except only
movable store and office furniture and fixtures) shall become and remain a part
of the building and be and remain Landlord's property upon the termination of
Tenant's occupancy of said premises; provided, however, that if Landlord gives
written notice to Tenant prior to the expiration or prior termination of this
Lease to such effect, it may require Tenant to restore said premises to their
original condition at Tenant's expense. Tenant shall save
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Landlord harmless from and against all expenses, liens, claims or damages to
either property or person which may or might arise by reason of the making of
any such additions, improvements, alterations and/or installations.
(B) Mechanic's Liens. In the event any mechanic's lien shall at any
time, whether before, during or after the Lease term, be filed against any part
of the Shopping Center by reason of work, labor, services or materials performed
or furnished to Tenant, or its subtenants, licensees or concessionaires, Tenant
shall forthwith cause the lien to be discharged of record or bonded in
compliance with law and to the satisfaction of Landlord. If Tenant shall fail to
cause such lien to be so discharged or bonded with security acceptable to
Landlord within five (5) days after being notified of the filing thereof, then,
in addition to any other right or remedy of Landlord, Landlord may discharge the
lien by paying the amount claimed to be due. The amount paid by Landlord, and
all costs and expenses, including reasonable attorney's fees incurred by
Landlord in procuring the discharge of the lien, shall be due and payable by
Tenant to Landlord within five (5) days after demand.
16. Damage. If the demised premises shall be partially or totally damaged
or destroyed by any risk covered by Landlord's insurance as provided for in the
Insurance provisions of this Lease, then Landlord shall diligently and as soon
as practicable after such damage occurs (taking into account the time necessary
to effectuate a satisfactory settlement with any insurance company, and to
obtain permits for the work, and reasonable delay on account of "labor troubles"
or any other cause beyond Landlord's reasonable control) repair or rebuild the
demised premises, provided, however, that in no event shall Landlord be
obligated to expend in such repair or rebuilding any sums in excess of the
amount of insurance proceeds paid to Landlord in connection therewith. The
foregoing notwithstanding, in no event shall Landlord be required to repair,
restore or rebuild any portions of the demised premises constituting a part of
Tenant's leasehold improvements or other tenant work, trade fixtures, equipment
and personal property; the Tenant at its own expense to perform such repairs and
replacements when required by Landlord. If the demised premises are rendered
wholly or partially untenantable by such damage or destruction, and if such
damage and destruction was without the fault or neglect of the Tenant, its
servants, employees, agents or licensees, then the Minimum Annual Rent payable
by Tenant under the Lease during the period in which the demised premises are
so untenantable shall be equitably abated by the percentage that the unusable
floor area of the demised premises bears to the total floor are thereof, but
Percentage Rent, if applicable, shall not be abated. Landlord shall not be
liable for any damages (including, without limitation, business interruption)
that may be suffered by Tenant by reason of any casualty to the demised premises
and/or Landlord's repairing or rebuilding thereof and/or the deprivation of
Tenant's use and possession of the demised premises. All of the foregoing
provisions of this Article notwithstanding, if the demised premises are
rendered wholly untenantable by fire or other cause, and the Landlord shall
decide not to rebuild the same, or if the Shopping Center shall be so damaged
that the Landlord shall decide to demolish it or not to rebuild it, then, and in
any of such events, the Landlord may, at its option, cancel and terminate this
Lease by giving to the Tenant, within ninety (90) days from the date of such
damage, notice in writing of its intention to cancel this Lease, whereupon the
term of this Lease shall cease and determine upon the tenth day after such
notice is given, and the Tenant shall vacate the leased premises and surrender
the same to the Landlord. Further, in the event the premises shall be rendered
untenantable by reason of fire or other casualty, and it shall require Landlord
more than one hundred eighty (180) days to substantially complete the repairs
required of it hereunder, then and in such event provided Tenant is not in
default hereunder, and that the damage was not caused by wrongful or intentional
act of Tenant or any of its Permitees, Tenant shall be entitled to terminate
this Lease, by written notice delivered to Landlord within ten (10) days after
the end of said 180 days period.
17. Eminent Domain. If the Shopping Center or any part hereof shall be
taken by any governmental or quasi-governmental authority pursuant to the power
of eminent domain or deed in lieu thereof, Tenant agrees, except as set forth in
the next sentence, to make no claim for compensation in the proceedings for its
leasehold or any other item, and hereby assigns to Landlord any rights which
Tenant may have to any portion of any award made as a result of such taking. The
foregoing notwithstanding, Tenant shall be entitled to claim, prove and receive
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in the condemnation proceedings such awards as may be allowed for relocation
expenses and for fixtures and other equipment installed by it which shall not,
under the terms of this Lease, be or become the property of Landlord at the
termination hereof, but only if such awards shall be made by the condemnation
court in addition to and stated separately from and without reducing the awards
made by it for the land and the building or part thereof so taken, or the value
of or awards for taking of Landlord's leasehold interests therein or its
interests in this Lease. If less than the whole of the demised premises is so
taken, and such partial taking materially and adversely affects the continuance
of Tenant's business, the Lease Term may, at the election of either party,
terminate upon notice to the other party within sixty (60) days after surrender
of possession pursuant to such taking. If neither party so elects, the Lease
Term shall terminate as to the part taken and shall continue as to the part
not taken, and the Minimum Annual Rent shall be reduced by the percentage that
the rentable area of the part taken bears to the whole of the demised premises
and be adjusted to the date of taking. If the nature, location or extent of any
proposed condemnation affecting the Shopping Center is such that the Landlord
elects in good faith to demolish all or substantially all of the buildings in
the Shopping Center, then the Landlord may terminate this Lease by giving at
least sixty (60) days written notice of termination to the Tenant at any time
after such condemnation and this Lease shall terminate on the date specified in
such notice.
18. Roof Rights. Landlord shall have the exclusive right to use all or any
portion of the roof of the demised premises for any purposes, and shall have the
right to erect additional stories or other structures over all or any part of
said premises.
19. Store Purpose: Trade Name. (A) The leased premises shall be used
solely for the purpose of conducting therein the business or use set forth in
Article 1(p) of the Data Sheet (hereinafter referred to as the "Specified Use").
Tenant shall not use all or any portion of the demised premises for any other
purpose. No deviation whatsoever from the Specified Use herein shall be allowed
for all or any portion of the demised premises without the prior written consent
of Landlord.
(B) Tenant agrees not to commit waste in the demised premises, or to
permit any objectionable noise or odor to emit therefrom, and not to use the
demised premises for any unlawful purpose, or in violation of any certificate of
occupancy, nor suffer any dangerous article to be brought on the demised
premises unless safeguarded as required by law. Moreover, no nuisances, public
or private, shall be allowed on the demised premises nor shall any use be
allowed which is a source of annoyance or embarrassment to Landlord or the other
tenants of the Shopping Center, or which is deemed by Landlord as not in keeping
with the character of the Shopping Center or neighborhood, nor shall the demised
premises be used for any immoral or improper use.
(C) The trade name or advertised name of the business operated in
the demised premises is set forth in the Article 1(o) of the Data Sheet. Tenant
agrees not to change said name without the written permission of Landlord.
However, if Tenant changes its trade name used at a majority of its other
locations, then if so requested by Landlord, the Tenant will change its trade
name and signs at the premises to such new trade name.
(D) Tenant will not, directly or indirectly, itself or through one
or more affiliate(s), engage in or conduct at any other location within a one
(1) mile radius of the boundaries of the Shopping Center, any business similar
to the Specified Use.
(E) Tenant shall not use or install or store in or about the
premises, any asbestos, urea formaldehyde, PCB's or other hazardous or toxic
substances, or any materials in violation of any federal, state, county or
local environmental laws, codes or regulations, nor allow its Permitees to do
so. Tenant shall indemnify, defend and hold harmless Landlord from all
litigation, judgments, fines, prosecutions, costs, damages and claims arising
from any violation or breach of the provisions of this Article 19.
20. Signs. Tenant shall not furnish or install any sign or signs within
the premises or Shopping Center visible from the exterior of the premises
without the prior written
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consent of Landlord first had and obtained. Tenant shall obtain and pay for
all permits and licenses required in connection with any sign installed by or on
behalf of Tenant, and shall be responsible for the proper installation thereof.
It is further understood that all signs placed by Tenant on the demised
premises shall be erected and maintained and removed in accordance with the
county, state and/or other ordinances in force or effect at the time, and at the
sole cost and expense of Tenant, and be removed by Tenant by the expiration of
termination of this Lease. Tenant agrees to maintain all signs in good condition
and repair at all times to the reasonable satisfaction of Landlord. If Tenant
fails to repair or maintain or remove as aforesaid its signs after receiving at
least ten (10) days written notice from Landlord, Landlord may (but shall not be
obligated to) repair or arrange to have repaired or removed, Tenant's signs.
Landlord may also submit an invoice to the Tenant for the cost of repairs to or
removal of the signs, which shall be paid to Landlord no later than ten (10)
days after demand therefor. Except as expressly permitted by Landlord, no other
signs, lights, lettering or other forms of inscription or advertising or display
devices shall be displayed on the exterior of the demised premises or on the
immediate proximity to the inner or outer face of the show windows, entrances,
doors or transoms nor shall the same be displayed in any other location within
the demised premises from which said signs, lights, or other forms of
inscription or advertising or display devices may readily be seen from outside
the demised premises without prior written approval of Landlord as to size,
color, lighting, appearance, material, design, quality and neatness thereof. It
is further agreed that Tenant shall not use sidewalks, parking areas, and alleys
for displays, wares, or signs of any kind. The Landlord shall determine during
what hours the Shopping Center any signs shall be lit.
21. Hours of Lighting. If requested by Landlord, Tenant shall keep the
display windows in the demised premises adequately lighted from dusk until
10:00 p.m. or such other reasonable time as determined by Landlord, during each
and every day.
22. Parking and Common Use Area. (A) All automobile parking areas,
driveways, entrances and exits, and other facilities furnished by Landlord in or
near the Shopping Center, including employee parking areas, the truckway or
truckways, loading docks, package pick-up stations, pedestrian sidewalks and
ramps, landscaped areas, exterior stairways and other areas and improvements
provided by Landlord for the general use, in common, of tenants, their officers,
agents, employees and customers, shall at all times be subject to the exclusive
control and management of the Landlord, and Landlord shall have the right from
time to time to establish, modify and enforce reasonable rules and regulations
with respect to all facilities and areas, the right to construct, maintain and
operate lighting facilities on all said areas and improvements, the right to
change the area, level, location and arrangement of parking areas and other
facilities hereinabove referred to and the right to restrict parking by tenants,
their officers, agents and employees to employee parking areas. Landlord shall
not, however, have any duty to police the traffic in the parking areas. However,
if a parking lot attendant shall be required as determined by the Landlord or by
ordinance, regulation or law, Landlord shall provide same, and the cost of such
attendant shall be considered part of the cost of maintenance and operation of
common areas as otherwise provided for in this Lease.
(B) Any areas of the Shopping Center that may be set aside by Landlord for
parking of automobiles may be used by Tenant and its customers while engaged in
business in the demised premises, in common with like use by other lessees of
the Shopping Center, but subject to any reasonable conditions the Landlord may
impose from time to time. The use of said exterior automobile parking areas by
Tenant and Tenant's customers shall be at their sole risk and expense, and in no
event shall Landlord have any liability for damage to, theft or loss of property
of the Tenant or of Tenant's employees, visitors, licensees or invitees suffered
or sustained in or about said parking areas. Tenant agrees to keep, observe and
comply with all such rules and regulations established by Landlord, and will
direct and require its employees to comply therewith. No employee of Landlord is
authorized to accept possession of any vehicle from the Tenant or from Tenant's
employees, licensees, visitors or invitees, nor to accept custody of any article
from Tenant. Landlord, at its option and exclusive discretion may modify or
erect additional buildings in the existing parking area from time to time,
provided the automobile parking area remaining following such additional
construction shall not be below that required under applicable laws governing
shopping center automobile parking. Tenant will not
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park its automobiles, and will require its employees not to park their vehicles,
in any part of the customer parking areas, other than such as from time to time
may be established by Landlord for such purposes. Tenant agrees not to permit
deliveries of merchandise to the premises to be made other than through the rear
of the premises. Landlord agrees to keep the common areas in reasonably good
condition.
23. Utilities. Tenant shall be solely responsible for and promptly pay all
charges for HVAC, water, gas, electricity, telephones and any other utility used
or consumed in or on the premises. Should Landlord elect to supply any of same,
Tenant shall pay to Landlord as additional rent the charge or cost thereafter
levied by Landlord in accordance with rules filed by Landlord with the
proper regulatory agency. In no event shall Landlord be liable for an
interruption or failure in the supply of any such utilities to the demised
premises.
24. Trash. Tenant will keep the premises in a clean, orderly and sanitary
condition and free of insects, rodent, vermin, other pests and trash and dirt
accumulations, and shall furnish and use adequate and proper receptacles inside
the demised premises for trash and garbage. Landlord shall maintain and keep in
good repair the parking lot, pedestrian walkways and driveways, keeping them
clean, free of snow and ice, orderly, properly lighted and marked. Landlord may,
at its sole discretion, provide dumpster service deemed adequate by Landlord for
the normal trash collection needs of the typical tenant of the Shopping Center,
in which event Tenant shall cooperate with Landlord in the scheduling of such
collection service. The costs of any such service shall be included in the
Landlord's common area costs or shall be separately billed to Tenant monthly,
based on the ratio of the floor area of the demised premises to the aggregate
floor area of all tenants to whom Landlord furnishes such service. Landlord may
at any time change such collection methods, and will give reasonable notice to
Tenant. If Tenant requires additional dumpster service beyond that provided by
Landlord, Tenant shall provide same at its own expense, provided that the
selection and location of Tenant's dumpsters shall be subject to Landlord's
prior written approval.
25. Keep Clean. Tenant agrees to keep the sidewalks abutting the demised
premises in a clean and orderly fashion, and agrees not to use any space, other
than within the walls of the demised premises, for the sale or storage of
merchandise or for service of any kind.
26. Hold Harmless. Tenant agrees that it will indemnify, defend and save
the Landlord harmless from any and all liabilities, damages, causes of action,
suits, claims, judgments, costs and expenses of any kind (including but not
limited to reasonable attorneys' fees) (i) relating to or arising from or in
connection with the possession, use, occupancy, management, repair, maintenance
or control of the demised premises, or any portion thereof, or (ii) arising from
or in connection with any act or omission of Tenant or Tenant's Permitees, or
(iii) resulting from any default, violation or nonperformance of this Lease by
Tenant, or (iv) resulting in injury to person or property or loss of life
sustained in or about the demised premises. To assure such indemnity, Tenant
shall carry and keep in full force and effect at all times during the term of
this Lease, for the protection of the Landlord and Tenant herein, public
liability and property damage insurance with respect to the demised premises in
which the combined single limit of such public liability and property damage
shall be at least Three Million Dollars ($3,000,000.00). The policy shall name
Landlord, any person or entity designated by Landlord, and the Tenant as
insureds, and shall contain a clause that the insurer shall not cancel or change
the insurance without first giving Landlord and all other named insureds at
least thirty (30) days prior written notice. The insurance shall be in an
insurance company approved by Landlord, and a copy of the policy or a
certificate of insurance shall be delivered to Landlord or Landlord's agent
within ten (10) days after execution of this Lease by Landlord, and renewal
certificates shall be delivered to Landlord at least fifteen (15) days before
any such policy expires. If Tenant fails to maintain such policy of insurance,
Landlord may (but shall not be required to), obtain such policy and pay the
premiums thereon, and the amounts so paid shall be reimbursed by Tenant to
Landlord within five (5) days after demand.
27. Property at Tenant's Risk. All personal property, goods, and
merchandise in said premises shall be and remain at the Tenant's sole risk, and
Landlord shall not be liable for any damage to or loss of such personal
property, goods and merchandise arising from the bursting,
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overflowing or leaking of the roof, or water, sewer or steam pipes, or from
heating or of plumbing fixtures, or from the handling of electric wires or
fixtures, or from any other cause whatsoever.
28. Insurance Risk. Tenant shall not keep gasoline or other inflammable
material or any other explosives in the demised premises or in the building or
use the demised premises or any part thereof, in a manner which may make void
or voidable any insurance on the demised premises or Shopping Center, and the
Tenant shall conform to all rules and regulations from time to time established
by any Insurance Rating Bureau or similar agency.
29. Landlord's Access. The Landlord and its agents shall have access to
the demised premises at any and all reasonable times for the purpose of
protecting said premises against fire, for the prevention of damage and injury
to the demised premises, for repairs, improvements or replacements, or for the
purpose of connecting utility lines or for the purpose of inspecting the same.
Landlord and its agents shall also have the right to enter the demised premises
for the purpose of exhibiting the same to prospective purchasers, mortgagees, or
tenants. Landlord's entry upon the demised premises for any of the foregoing
purposes shall not be deemed an eviction or disturbance of Tenant's use or
possession of the premises, and shall not render Landlord liable in any manner
to Tenant or any other person.
30. Bankruptcy. (A) For purposes of this Lease, the following
shall be deemed "Events of Bankruptcy" of Tenant: (i) if Tenant becomes
"insolvent", as defined in Title 11 of the United States Code, entitled
"Bankruptcy", 11 U.S.C. Section 101 et seq. (hereinafter called the "Bankruptcy
Code"), or under the insolvency laws of any state, district, commonwealth or
territory of the United States of America ("Insolvency Laws"); of (ii) if a
receiver or custodian is appointed for any or all of Tenant's property or
assets, or if there is instituted a foreclosure action on any of Tenant's
property; or (iii) if Tenant files a voluntary petition under the Bankruptcy
Code or Insolvency Laws;, or (iv) if there is filed an involuntary petition
against Tenant as the subject debtor under the Bankruptcy Code or Insolvency
Laws, which is not dismissed within thirty (30) days of filing, or results in
issuance of an order for relief against the debtor; or (v) if Tenant makes or
consents to an assignment of its assets, in whole or in part, for the benefit of
creditors, or a common law composition of creditors.
(B) Upon the occurrence of an Event of Bankruptcy, or if Tenant takes
advantage of any Insolvency Laws, then in any such event Landlord at its option
and sole discretion may terminate this Lease by written notice to Tenant
(subject, however, to applicable provisions of the Bankruptcy Code or Insolvency
Laws during the pendency of any action thereunder involving Tenant as the
subject debtor). If this Lease is terminated under this paragraph, Tenant shall
immediately surrender and vacate the demised premises, waives all statutory or
other notice to quit, and agrees that Landlord's obligations under this Lease
shall cease from such termination date, and Landlord may recover possession by
process of law or in any other lawful manner. Furthermore, if this Lease
terminates under this paragraph, Landlord shall have all rights and remedies
against Tenant provided in case of defaults of Tenant in payment of rent.
(C) If Tenant becomes the subject debtor in a case pending under the
Bankruptcy Code, Landlord's right to terminate this Lease under this paragraph
shall be subject to the applicable rights (if any) of the Trustee in Bankruptcy
to assume or assign this Lease as then provided for in the Bankruptcy Code.
However, the Trustee in Bankruptcy must give to Landlord and Landlord must
receive proper written notice of the Trustee's assumption or rejection of this
Lease, within thirty (30) days or other period specified by applicable law (the
"Decision Period") after the date of the Trustee's appointment; it being agreed
that failure of the Trustee to give notice of such assumption hereof within said
Decision Period shall conclusively and irrevocably constitute the Trustee's
rejection of this Lease and waiver of any rights of the Trustee to assume or
assign this Lease. The Trustee shall not have the right to assume or assign this
Lease unless said Trustee (i) promptly and fully cures all defaults of Tenant
under this Lease, (ii) promptly and fully compensates Landlord for all monetary
damages incurred as a result of such default, and (iii) provides to Landlord
"adequate assurance of future performance" (as defined hereinbelow). Landlord
and Tenant hereby agree in advance that "adequate
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assurance of future performance", as used in this paragraph, shall mean
that all of the following minimum criteria must be met: (a) Tenant's gross
receipts in the ordinary course of its business during the thirty (30) days
immediately preceding the initiation of the case under the Bankruptcy Code must
be at least twenty (20) times greater than the next payment of rent due under
this Lease, (b) both the average and median of Tenant's monthly gross receipts
in the ordinary course of its business during the six (6) months immediately
preceding initiation of the case under the Bankruptcy Code must be at least
twenty (20) times greater than the next payment of rent due under this Lease,
(c) Tenant must pay to Landlord all rentals and other sums payable by Tenant
hereunder including also therein its share (as estimated by Landlord) of the
cost of all services provided by Landlord (whether directly or through agents or
contractors, and whether or not the cost of such services to be passed through
to Tenant), in advance of the performance of provision of such services, and (d)
the Tenant must agree (by writing delivered to Landlord) that the Tenant's
business shall be conducted in a first class manner, and that no liquidating
sales, auctions, or other non-first class business operations shall be conducted
on the demised premises, and that the use of the demised premises as stated in
this Lease will remain unchanged, and that the assumption or assignment of this
Lease will not violate or affect the rights of other lessees in the building. In
the event Tenant is unable to: (i) cure its defaults, (ii) reimburse Landlord
for its monetary damages, (iii) pay the rents due under this Lease or any other
payments required of Tenant under this Lease on time, or (iv) meet the criteria
and obligations imposed by (a) through (d) above in this Article, then Tenant
hereby agrees in advance that it has not met its burden to provide adequate
assurance of future performance, and this Lease may be terminated by Landlord in
accordance with the above provisions contained in this Article.
(D) Damages. It is further stipulated and agreed that, in the event of
the termination of this Lease by the happening of any such event described in
this Article 30, Landlord shall forthwith, upon such termination, and any other
provisions of this Lease to the contrary notwithstanding, become entitled to
recover as and for damages caused by such breach of the provisions of this Lease
and by such termination all amounts permitted by applicable law.
31. Default of Tenant. This Lease is subject to the limitation that if
at any time any of the following events (herein called a "Default") shall occur:
(i) if Tenant shall fail to pay any installment of rent or any
other charge required to be paid by Tenant hereunder, when the same shall become
due and payable (it being specifically understood and agreed that the term
"rent" includes the Minimum Annual Rent, the Percentage Rent, the share of real
estate or other taxes and the share of cost of maintenance and operation of
common areas, as referred to in this Lease and any other consideration under the
Lease, that is identified as rent in this Lease), if such failure shall continue
for five (5) days following written notice thereof to Tenant (or if more than
two (2) monetary defaults occur in a given Lease Year, then no further notice of
monetary defaults need be given to Tenant in that Lease Year); or
(ii) if Tenant abandons or vacates the premises; or
(iii) if Tenant fails to either (a) be open for business to
the public for more than three (3) days in any one Lease Year (excluding,
however, Thanksgiving Day, Christmas Day and New Years Day, during which three
(3) days Tenant shall be entitled to close), or (b) be open for less than the
minimum hours as required under Article 39 for more than an aggregate of five
(5) days in any one Lease Year; or
(iv) if Tenant shall violate or fail to perform or observe any
other term, provision, covenant, condition or requirement of this Lease on the
part of Tenant to be performed or observed, and if such failure shall continue
for ten (10) days after written notice from Landlord; or
(v) if Tenant fails to keep in force any insurance required of
it hereunder (whether or not notice of such failure is given by Landlord to
Tenant);
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(vi) then upon the happening of any of the aforementioned
Defaults, in addition to the right of injunction and any other rights or
remedies of Landlord at law or at equity, (1) this Lease shall, at Landlord's
option, cease and terminate and shall operate as Notice to Quit, any statutory
or other requirements for notice to quit being hereby expressly waived by
Tenant, or (2) with or without terminating this Lease, Landlord may (and, if
necessary and lawful, forcibly) re-enter the premises, remove all persons and
property therefrom (and remove and/or store Tenant's property at Tenant's risk
and expense), and otherwise proceed to recover possession of said premises
either without service of notice or resort to legal process (if lawful) or by
virtue of any legal process as may at the time be in operation and force in like
cases relating to proceedings between Landlord and Tenant, and Tenant shall pay
for any court costs relating to such proceedings and reasonable attorneys' fees,
and/or (3) Landlord may, at its option, re-enter and re-rent the demised
premises for the account of Tenant, and, in such event, Tenant shall remain
liable to Landlord for any and all deficiencies in the rent and other charges
due under this Lease, and/or (4) in the event of a default under clause (iv) of
this Article, Landlord (at its option but without obligation to do so) may cure
such default for the account of Tenant, and any sums reasonably expended by
Landlord in connection therewith shall be paid by Tenant to Landlord upon
written demand and if not immediately paid shall be deemed to be additional
rent, payable on demand with the next due installment of Minimum Annual Rent. In
exercising its remedies under this Article, Landlord shall not be deemed guilty
of trespass or become liable for any loss or damage which may be occasioned
thereby.
32. Reletting. Should Landlord elect to re-enter, as herein provided,
or should Landlord take possession pursuant to legal proceedings or pursuant to
any notice provided by law, Landlord may either terminate this Lease or it may
from time to time without terminating this lease, make such reasonable
alterations and reasonable repairs as may be necessary in order to rent the
premises, and relet said premises or any part thereof for such term or terms
(which may but need not necessarily be for a term extending beyond the term of
this Lease) and at such rental or rentals and upon other terms and conditions as
Landlord in its exclusive discretion may deem advisable; and upon each such
reletting all rentals received by the Landlord from such reletting shall be
applied first, to the payment of any indebtedness other than rent due hereunder
from Tenant to Landlord; second, to the payment of any costs and expenses of
recovering and reletting the premises; third, to the payment of rent and other
charges due and unpaid hereunder; and the residue, if any, shall be held by the
Landlord and applied in payment of future rent and other charges as same may
become due and payable hereunder. If such rentals received from such reletting
during any months shall be less than that to be paid during that month by Tenant
hereunder, Tenant shall pay any such deficiency to landlord. Such deficiency
shall be calculated and paid monthly. No such re-entry or taking possession of
said premises by Landlord shall be construed as an election on its part to
terminate this Lease unless a written notice of such intention be given to
Tenant or unless the termination thereof be decreed by a court of competent
jurisdiction. Notwithstanding any such reletting without termination, Landlord
may at any time thereafter elect to terminate this Lease for any such previous
breach. Should Landlord at any time terminate this Lease for any breach, in
addition to any other remedies it may have, it may recover from Tenant damages
it may incur by reason of such breach, including any unpaid rent and other
charges or amounts due under this Lease which are due and owing at the time of
termination, and reasonable attorneys' fees and other costs of recovering,
repairing and redecorating the premises to a condition sufficient for reletting
same. In addition, in the event of termination by Landlord as aforesaid if
Landlord at its option and exclusive discretion so elects, Tenant shall pay to
Landlord, on demand, as liquidated, agreed damages, the following:
The sum of (i) the difference between:
(a) the rent and other charges which would have been payable
from the date of such demand to the date when this Lease would have expired if
it had not been terminated as aforesaid, and
(b) the fair rental value of the demised premises for the same
period.
with said difference being discounted at the rate of eight percent (8%) per
annum to present worth; and
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(ii) commissions, advertising, cost of repairs and other expenses
incidental to recovering and reletting the demised premises.
For all purposes of this Article, the term "rent and other charges" shall
include Minimum Annual Rent, [Percentage Rent], Tenant's Proportionate Share of
real estate taxes and common area maintenance costs, and all other charges and
pass-throughs provided herein. [For the purpose of computing Percentage Rent
after a Default, the monthly percentage rent shall be deemed to be equal to the
average monthly Percentage Rent paid hereunder for the twenty-four (24) months
during the term preceding such termination (or if less than twenty-four (24)
months, the average Percentage Rent, if any paid hereunder during such elapsed
period).]
In addition to the foregoing, Tenant shall pay all reasonable
attorneys' fees and other expenses incurred by Landlord as a result of any
default of Tenant under this Lease, whether or not suit is brought.
33. Hold Over. If Tenant shall not immediately surrender to Landlord
exclusive possession of the premises on the expiration date of the Lease Term
hereby created, then Tenant shall, by virtue of this Agreement, become a tenant
by the month at twice the Minimum Annual Rent, plus [Percentage Rent],
additional rent and other charges provided for in this Lease, commencing said
monthly tenancy with the first day next after the end of the term above demised;
and said Tenant, as a monthly tenant, shall be subject to all of the conditions
and covenants of this Lease as though the same had originally been a monthly
tenancy; and Tenant shall give to Landlord at least thirty (30) days prior
written notice to quit said premises, and Tenant shall be entitled to at least
thirty (30) days prior written notice from Landlord to quit said premises,
except in the event of non-payment of Minimum Annual Rent in advance or of
[Percentage Rent] when due or of any other additional rents as provided for in
this Lease, when due, or of the breach of any other covenant by Tenant, in which
event Tenant shall not be entitled to any notice to quit, the usual thirty (30)
days notice to quit being expressly waived by Tenant. However, if Tenant shall
hold over after the expiration of the term hereby created, and if Landlord shall
desire to regain possession of said premises promptly at the expiration of the
term aforesaid, then at any time prior to the acceptance of the Minimum Annual
Rent by Landlord from Tenant as a monthly tenant hereunder, Landlord, at its
election and option, may re-enter and take possession of said premises
forthwith, without process, or by any legal action or process in force in the
State of Maryland. Tenant's failure to give notice as required in this Article
shall obligate Tenant to pay rent calculated as aforesaid for one (1) full
calendar month following the month in which it vacated the premises and monthly
thereafter as a hold-over tenant aforesaid. Tenant hereby expressly waives the
right to any notice required to be given by Landlord pursuant to Section 8-402
of the Real Property Article of the Annotated Code of the State of Maryland, as
amended.
34. Subordination and Attornment. (A) This Lease is, and shall be,
subject and subordinate to all ground or underlying leases and to all present
and future mortgages and/or deeds of trust which may now or hereafter affect
such leases or the real property of which the demised premises form a part, and
to all renewals, modifications, consolidations, replacements and extensions
thereof. This clause shall be self-operative and no further instrument of
subordination need be required by any ground instrument of subordination need be
required by any ground lessor, mortgagee or trustee. However, in confirmation of
such subordination, Tenant shall execute, acknowledge and deliver to Landlord
within ten (10) days after Landlord's request, any certificate that Landlord may
request. Tenant hereby irrevocably constitutes and appoints Landlord as Tenant's
attorney-in-fact to execute any such certificate or certificates for and on
behalf of Tenant. Provided, however that notwithstanding the foregoing, the
party secured by any such deed of trust shall have the right to recognize this
Lease and, in the event of any foreclosure sale under such deed of trust, this
Lease shall continue in full force and effect at the option of the party secured
by such deed of trust or the purchaser at any such foreclosure sale. Tenant
covenants and agrees that it will, at the written request of the party secured
by any such deed of trust, execute, acknowledge and deliver any instrument that
has for its purpose and effect the subordination of said deed of trust to the
lien of this Lease. Tenant agrees that neither the cancellation nor termination
of any ground or underlying lease to which either this Lease is now or may
hereafter be subject or subordinate shall, by operation of law or otherwise,
result
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in cancellation or termination of this Lease or the obligations of Tenant
hereunder, unless otherwise directed by the ground lessor.
(B) Attornment. Tenant further covenants and agrees to attorn
to and recognize as its landlord hereunder any successor to Landlord's interest
in this Lease as result of foreclosure or conveyance in lieu thereof under any
deed of trust or ground or underlying lease, and in that event, this Lease shall
continue as a direct lease between the Tenant herein and such successor landlord
or its successor. In such case, the successor to Landlord's interest hereunder
as a result of foreclosure or conveyance under such deed of trust or termination
of ground or underlying lease (the "Successor") shall not (i) be bound by any
prepayment of rent or additional rent for more than one (1) month in advance, so
that rent shall be payable under this Lease in accordance with its terms, from
the date of the date of the foreclosure of such deed of trust, or termination of
the ground or underlying lease, as if such prepayment had not been made, nor
(ii) be bound by any amendment or modification of this Lease or by any waiver or
forbearance by any prior lessor (including Landlord) made or given without the
prior written consent of such Successor, nor (iii) be subject to any offsets or
defenses which Tenant may have against any prior lessor (including Landlord),
nor (iv) be liable for any defaults of any prior lessor (including Landlord).
Furthermore, Landlord's mortgagees shall be discharged of any responsibility
hereunder to Tenant which may have arisen (by reason of the mortgagee becoming a
mortgagee in possession, a lessor or otherwise) after such mortgagee disposes of
its interest in the building of which the demised premises forms a part. Tenant
hereby agrees not to look to Landlord's mortgagees, as mortgagees, mortgagees in
possession, or successor in title to the building or to any leasehold interest
in the land for accountability for any security deposit required or held by
Landlord hereunder, unless and to the extent that such sums have actually been
received by said mortgagees as security for Tenant's performance of or under
this Lease.
35. Notices. All notices, demands, requests, approval, consents or
other instruments required or desired to be given hereunder by either party to
the other shall be given in writing by certified or registered mail, return
receipt requested, postage prepaid, addressed as follows: If to Landlord, c/o
Xx. Xxxxx X. Xxxxx, 0000 X Xxxxxx, XX, Xxxxx 000, Xxxxxxxxxx, X.X. 00000; and if
to Tenant at Xxx Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000. Either
party may change its address for purposes of this paragraph by written notice to
the other party given at least ten (10) days before such change becomes
effective. All rents or other payments due Landlord hereunder shall be paid by
good check to Landlord at such place as Landlord shall designate by written
notice given to Tenant.
36. Successors and Assigns. Feminine or neuter pronouns shall be
substituted for those of the masculine form, and the plural may be substituted
for the singular number, in any place or places herein in which the context may
require such substitution or substitutions; and the covenants and agreements
herein contained shall, wherever appropriate, be binding upon and inure to the
benefit of the heirs, administrators, executors, personal representatives,
successors and assigns or the parties hereto.
37. Subletting and Assignment. Tenant will not sublet the demised
premises or any part thereof, or transfer, assign or encumber this Lease or any
interest of Tenant herein, without Landlord's prior written consent, which
consent may be granted or withheld in Landlord's absolute discretion or
conditioned upon such terms and conditions as Landlord shall determine. In the
event Tenant shall desire to assign this Lease or sublet all or any portion of
the premises, Tenant shall give Landlord at least ninety (90) days prior written
notice thereof. Landlord shall be entitled in such event to terminate this
Lease, effective as of the date of such proposed subletting or assignment and
exercisable only by written notice from Landlord given within sixty (60) days
following receipt by Landlord of such notice from Tenant*. If, without
Landlord's prior written consent, there shall be an attempted assignment or
subletting, or if the demised
* If in the event of an assignment of this Lease as a result of the transfer of
Corporate Stock or to another financial institution of the same caliber and
integrity of the Bank of Baltimore, then in those cases Landlord will not
unreasonably hold or delay any assignment, nor in the event he chooses not to
approve such assignment will he have the right to terminate this Lease.
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premises shall be occupied by any party other than Tenant, whether as a result
of act or omission by Tenant or by operation of law or otherwise, Landlord may,
in addition to and not in diminution of or substitution for any other rights and
remedies under this Lease or pursuant to law to which Landlord may be entitled
as a result thereof, collect rent from the proposed assignee, subtenant or
occupant and apply the net amount collected to the rent herein reserved, but no
such assignment, subletting, occupancy or collection shall be deemed a waiver of
this covenant or the acceptance of the assignee, subtenant or occupant as a
tenant, or a release of Tenant hereunder from the further performance by Tenant
of the covenants on the part of Tenant herein contained.
If Landlord shall consent to any requested transfer, assignment,
encumbrance, subletting, license and/or concession, such consent shall be deemed
consent to that particular transaction only and shall not be deemed consent to
any other or future transfer, assignment, encumbrance, subletting, license
and/or concession, as the case may be. Any permitted transfer, assignment,
encumbrance, subletting, license and/or concession shall be expressly subject to
each and every term, covenant and condition of this Lease, unless otherwise
specifically provided in writing executed by Landlord. Further, Tenant and any
guarantor hereunder shall remain fully liable and obligated under and
unconditionally notwithstanding such transfer or assignment.
If Tenant is a corporation, unincorporated association or partnership,
and Tenant shall desire to transfer, assign or hypothecate any stock or other
ownership interest in such corporation, association or partnership so as to
result in a change in the control thereof by the person, persons or entities
owning a controlling interest therein as of the date of this Lease, such
transfer, assignment or hypothecation shall be deemed a transfer of this Lease
for all purposes of this Article 37. Any transfer of this Lease or subletting of
all or any part of the premises made without prior written consent of the
Landlord shall entitle Landlord to terminate this Lease at any time after actual
notice of such change by giving tenant at least ninety (90) days prior written
notice and, on the date fixed in such notice from Landlord for termination of
this Lease, this Lease shall expire and come to an end with the same effect as
if said date were originally set forth in this Lease for expiration of the term.
The mere receipt by Landlord of rent from a party other than Tenant shall not be
deemed actual notice of any change in control or ownership of Tenant.
38. Not Partners. The parties hereto by this agreement expressly do not
intend as a matter of fact or law to create or constitute a partnership; and
instead the only relationship hereunder of Landlord and Tenant shall be deemed
that of lessor and lessee, respectively.
39. Continuous Occupancy. Throughout the term, Tenant shall
continuously conduct in the premises, with a full stock of merchandise and a
full staff trained, courteous and competent of personnel, the business permitted
under this Lease on all business days and during such hours as are kept by a
majority of the other lessees in the Shopping Center. Regardless of the minimum
number of hours per week Tenant is open for business, and regardless of which
additional hours Tenant is open, Tenant shall in all events remain open for
business during the hours of 9:00 a.m. to 5:00 p.m. Mondays through Saturdays.
Tenant acknowledges that its obligation to continuously and actively conduct
business in the premises in the manner prescribed in this Article is for the
purpose of enhancing the business activity and public patronage of all stores in
the Shopping Center, in order to produce for Landlord the maximum possible
percentage rents from all stores in the Shopping Center as well as from the
premises and to enhance the leasability of floor space in the Shopping Center.
40. Maintenance and Operation of Common Areas. Landlord agrees to
keep the parking areas in the Shopping Center and the other common areas
reasonably free of snow, ice and debris, and to keep the same lighted during
the business hours of a majority of the tenants in the Shopping Center. Landlord
further agrees to keep the parking areas in the Shopping Center and other common
areas in reasonably good repair and order.
41. Cost of Maintenance and Operation of Common Areas. (A) Common area
maintenance costs are defined as the total costs and expenses incurred by
Landlord, or others on Landlord's behalf, in operating, maintaining and
repairing those areas and facilities common
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to the entire Shopping Center, for the benefit of the entire Shopping Center.
Common area maintenance costs shall include those items set forth in Exhibit "A"
hereto. Common area maintenance costs shall also include a fee of twenty percent
(20%) of all of such costs in order to compensate Landlord for its
administration and overhead expenses. Common areas are defined as all areas,
facilities and improvements provided from time to time in the Shopping Center
(except those within any stores premises) for the mutual convenience and use of
commercial tenants or other occupants of the Shopping Center, their respective
agents, employees, customers and invitees, and shall include (if provided) but
not be limited to parking areas and facilities, including, without limitation,
roadways, entrances, sidewalks, stairways, canopies, service corridors,
truckways, ramps, loading docks, delivery areas, landscaped areas, package
pickup stations, public restrooms and comfort stations, access and interior
roads, retaining walls and lighting facilities.
(B) For purposes of this Lease, Tenant's Percentage Share of
common area maintenance costs shall be that percentage set forth in Article 1(d)
of the Data Sheet, representing the proportion that the total gross rentable
square feet contained within the demised premises bears to the total gross
rentable square feet contained within the Shopping Center. Subject to adjustment
as herein provided, Tenant shall pay Landlord on the Rent Commencement Date and
on the first day of each calendar month during the term hereof an amount
estimated by Landlord to be Tenant's monthly Percentage Share of the common area
maintenance costs, and Landlord may adjust said amount at the end of any
calendar month on the basis of Landlord's experience and reasonably anticipated
cost.
(C) Within ninety (90) days following the end of each calendar
year, or as soon thereafter as may be practicable, Landlord shall furnish Tenant
a statement covering such calendar year just expired showing the common area
maintenance cost and the amount of Tenant's Percentage Share of such costs for
such year computed in accordance with this Article 41, and the payments made by
Tenant with respect to such year as set forth hereinabove. If Tenant's
Percentage Share of such costs is less than Tenant's payments so made, Tenant
shall be entitled to a credit of the difference, without interest, or if such
share is greater than Tenant's said payments, Tenant shall pay Landlord the
difference, without interest. Tenant and Landlord shall adjust and make refunds
or pay the deficiency, as the case may be, within thirty (30) days after receipt
of such statement. Tenant's Percentage Share of the common area costs shall be
adjusted proportionately for any partial lease year.
(D) Landlord may, at its option, elect to xxxx Tenant on a
basis less frequently than monthly for common area maintenance costs, and in
such event, Tenant shall pay to Landlord within twenty (20) days following
written demand therefor, any amounts so billed.
(E) Tenant's obligations for payments under this Article 41
covering any periods within the term of this Lease or any renewal, extension or
hold-over term shall survive this expiration or termination of this Lease.
42. Insurance. (A) Landlord shall obtain and maintain in effect during
the term of this Lease a policy or policies of insurance (i) covering the
improvements constituting the Shopping Center (including the Common Areas, but
excluding Tenant's leasehold improvements, trade fixtures and other property
required to be insured by Tenant) in an amount not less than eighty percent
(80%) of the full replacement cost (exclusive of the cost of excavations,
foundations, and footings), as determined from time to time, providing
protection against perils included within the standard Maryland form of fire and
extended coverage insurance policy, together with such other risks, and with
such deductibles, as Landlord may from time to time determine, and (ii) public
liability insurance covering the parking areas and other Common Areas with a
combined single limit of at least One Million Dollars ($1,000,000.00); or in
such greater coverage amounts and for such additional risks as Landlord in its
exclusive discretion may determine from time to time. The cost of the premiums
for any such policies shall be included in the Landlord's Common Area
Maintenance costs. Any such insurance may be effected by a separate policy or
policies, or a policy or policies of blanket insurance covering additional items
or locations or insured, at Landlord's option and discretion. Tenant shall have
no rights in any policy maintained by Landlord, nor to any insurance proceeds or
refunds
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thereunder, and shall not, by reason of payment by Tenant as part of Common Area
Maintenance costs of its pro rata share of Landlord's premiums therefor, be
entitled to be a named insured thereunder.
(B) Tenant, at Tenant's sole cost and expense, shall obtain
and maintain in effect at all times during the term of this Lease, policies
providing at least the following coverages:
(i) a comprehensive policy of general liability insurance
covering the leased premises and Tenant's use thereof against claims for
personal injury or death or property damage occurring upon, in or about the
leased premises, in at least the limits stipulated in Article 26;
(ii) insurance covering Tenant's leasehold improvements, trade
fixtures, equipment, and personal property from time to time in, on or upon the
leased premises, in an amount of not less than eighty percent (80%) of the full
replacement value of said items, providing protection against perils included
within the standard Maryland form of fire and extended coverage insurance
policy, together with insurance against sprinkler damage, vandalism and
malicious mischief. Any policy proceeds from such insurance, so long as this
Lease shall remain in effect, shall be held in trust by Tenant's insurance
company first to pay for the repair, reconstruction, restoration or replacement
of the property damaged or destroyed; and
(iii) plate glass insurance covering all plate glass in the
leased premises. Tenant shall be and remain liable for the repair and
restoration of all such plate glass, and will repair or replace same promptly
when and as necessary.
(C) All insurance policies herein required to be procured by
Tenant (i) shall be issued in form acceptable to Landlord by good and solvent
insurance companies qualified to do business in the State of Maryland and
reasonably satisfactory to Landlord, (ii) shall be issued in the names of
Landlord, Tenant and any other parties in interest from time to time designated
in writing by notice from Landlord to Tenant, (iii) shall be written as primary
policy coverage and not contributing with or in excess of any coverage which
Landlord may carry, and (iv) shall contain an express waiver of any right of
subrogation by the insurance company against Landlord. Neither the issuance of
any insurance policy required hereunder, nor the minimum limits specified herein
with respect to Tenant's insurance coverage, shall be deemed to limit or
restrict in any way Tenant's liability arising under or out of this Lease. With
respect to each and every one of the insurance policies herein required to be
procured by Tenant, on or before the Rent Commencement Date and at least fifteen
(15) days before any such insurance policy shall expire, Tenant shall deliver to
Landlord either (i) certificates of insurance for, or (ii) certified copies of,
or (iii) duplicate originals of, each such policy or renewal thereof, as the
case may be, together with evidence of payment of all applicable premiums. Any
insurance required to be carried hereunder may be carried under a blanket policy
covering the demised premises and other locations of Tenant (provided same
includes allocated amounts for the demised premises at least equal to those
herein required), and if Tenant includes the demised premises in such blanket
coverage Tenant shall deliver to Landlord, as aforesaid, a duplicate original or
certified copy of each such insurance policy or a certificate evidencing such
insurance. Each and every insurance policy required to be carried hereunder by
or on behalf of Tenant shall provide that, unless Landlord shall first have been
given at least fifteen (15) days prior written notice thereof; (i) such
insurance policy shall not be canceled and shall continue in full force and
effect, (ii) the insurance carrier shall not, for any reason whatsoever, fail to
renew such insurance policy, and (iii) no material change may be made in such
insurance policy. In the event that Tenant shall fail promptly to furnish any
insurance coverage herein required to be procured by Tenant, Landlord, at its
option and discretion (but without obligation to do so) shall have the right to
obtain the same and pay the premiums therefore for a period not exceeding one
(1) year in advance in each instance, and the premiums so paid by Landlord shall
be immediately payable by Tenant to Landlord as additional rent.
(D) Notwithstanding any contrary provision of this Lease, each
party hereby releases the other party from any liability or responsibility for
any loss or damage to the
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releasing party's property insured under valid and collectible insurance,
subject to the limitation that this release shall only apply when permitted by
the applicable policy of insurance pursuant to a waiver of subrogation clause.
It is the intention of this paragraph (D) that neither party shall be liable to
the other party or to any insurance company (by way of subrogation or otherwise)
insuring the other party for any lost or damage to the other party's property
where such waiver is permitted by the applicable insurance policy. Each party
shall obtain policies containing an express waiver of any right of subrogation
by the insurance company against the other party if same is available. The
release set forth in the first sentence of this paragraph (D) shall apply even
if the loss or damage shall have been caused by the negligence of the other
party, the other party shall furnish the requesting party with evidence of the
inclusion of such waiver of subrogation clause or endorsement in such policies,
and either party shall notify the other party if such clause or endorsement is
thereafter deleted from such policies or any renewals thereof.
43. Additional Rent: Late Charges. (A) If Landlord shall incur any
charge or expense on behalf of Tenant under the terms of this Lease, or if
Landlord elects to cure any default of Tenant under this Lease, or incurs any
other expense arising from a default by Tenant (including, without limitation,
court costs and reasonable attorney's fees and disbursements instituting,
prosecuting or defending any suits, actions or proceedings (including any
bankruptcy or insolvency proceedings) to enforce Landlord's right xxxxxx this or
any other Article of this Lease or otherwise), the sums so paid by Landlord with
all interest, costs and damages shall be paid by Tenant to Landlord upon written
demand, whether or not suit is brought.
(B) If Tenant shall fail to pay within five (5) days from the due date
thereof any installment of Minimum Annual Rent, [Percentage Rent] or additional
rent or any other sums due hereunder, then and in such event Landlord shall be
entitled, in addition to any other legal or equitable remedies to which it may
be entitled, to a late payment charge in an amount equal to ten percent (10%) of
each such rent installment or other payment overdue (the "Late Charge"), and
Tenant shall pay to Landlord the Late Charge and the installment overdue within
five (5) days after demand. Further, if Tenant is in default in any installments
of Minimum Annual Rent, Percentage Rent and/or any payments of additional rent
hereunder, more than twice during any Lease Year, then Landlord at its option
may require that all future payments of Minimum Annual Rent, Percentage Rent,
and additional rentals and other sums thereafter payable hereunder by Tenant for
the twelve (12) month period following the second of such defaults, be made by
certified or cashier's check (in addition to and not in limitation of any other
remedies available to Landlord under this Lease).
44. Quiet Enjoyment. Landlord covenants that if Tenant pays the rent
and all other charges provided for herein, performs all of its obligations
provided for hereunder, and observes all of the other provisions hereof, Tenant
shall at all times during the term hereof peaceably and quietly have, hold and
enjoy the demised premises, without any interruption or disturbance from
Landlord, subject to the terms hereof.
45. Transfer of Landlord's Interest; Landlord's Liability.
Notwithstanding any provision of this Lease to the contrary, in the event of the
sale or other transfer of Landlord's interest in the demised premises or the
Shopping Center, (i) Landlord shall thereupon and without further act by either
party hereto be released and discharged of all covenants and obligations of
Landlord hereunder thereafter accruing, and (ii) it shall be deemed and
construed conclusively, without further agreement between the parties, that the
purchaser or other transferee or assignee has assumed and agreed to perform the
obligations of Landlord hereunder thereafter accruing. The liability of Landlord
hereunder shall be limited to the assets and properties of the ownership entity
owning the Shopping Center. In no event shall any general partners of Landlord
have any personal liability under this Lease.
46. No Waiver. No waiver by Landlord of any breach of any covenant,
condition or agreement herein contained shall operate as a waiver of the
covenant, condition or agreement itself, or of any subsequent breach thereof.
The acceptance by Landlord of rent, with knowledge of any breach by Tenant of
any condition or covenant of this Lease, shall not be deemed a waiver of such
breach, nor shall the acceptance by Landlord of rent after the termination in
any
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way of this Lease or after giving any notice by Landlord operate to reinstate,
continue, or extend the Lease Term, or affect any notice. No receipt of any rent
after the commencement of suit, or after final judgement for possession of the
demised premises, shall reinstate, continue, or extend the Lease Term or affect
said suit or said judgement. No waiver with respect to another tenant shall
constitute a waiver in favor of Tenant. No waiver by Landlord of any provision
of this Lease shall be deemed to have been made unless such waiver be signed in
writing by Landlord.
47. Partial Invalidity. If any term, covenant or condition of this
Lease or the application thereof to any person or circumstances shall to any
extent be invalid or unenforceable, the remainder of this Lease or the
application of such term, covenant or condition to persons or circumstances
other than those as to which it is held invalid or unenforceable shall not be
affected thereby, and each term, covenant and condition of this Lease shall be
valid and enforced to the fullest extent permitted by law.
48. Rules and Regulations. Tenant shall at all times comply with the
rules and regulations set forth on Exhibit "B" attached hereto, and with any
additions thereto and modifications thereof adopted from time to time by
Landlord, and each rule or regulation shall be deemed as a covenant of this
Lease to be performed and observed by Tenant.
49. Modification. This writing is intended by the parties as the final
expression of their agreement and as a complete and exclusive statement of the
terms thereof, all negotiations, considerations and representations between the
parties having been incorporated herein. No course of prior dealings between the
parties or their affiliates shall be relevant or admissible to supplement,
explain or vary any of the terms of this Lease. Acceptance of, or acquiescence
in, a course of performance rendered under this or any prior agreement between
the parties or their affiliates shall not be relevant or admissible to
determine the meaning of any of the terms of this Lease. No representations,
understandings or agreements have been made or relied upon in the making of this
Lease other than those specifically set forth herein. This Lease can only be
modified by a writing signed by all of the parties or their duly authorized
agents.
50. Estoppel Certificate. Tenant agrees, at any time and from time to
time, upon not less than five (5) days prior written notice from Landlord, to
execute, acknowledge and deliver to, Landlord, or to such person(s) as may be
designated by Landlord, a statement in writing (i) certifying that Tenant is in
possession of the demised premises, has unconditionally accepted the same and is
currently paying the rents reserved hereunder, (ii) certifying that this Lease
is unmodified and in full force and effect (or if there have been
modifications, that the Lease is in full force and effect as modified and
stating the modifications), (iii) stating the dates to which the rent and other
charges hereunder have been paid by Tenant, (iv) stating whether or not, to the
best knowledge of Tenant Landlord is in default in the performance of any
covenant, agreement or condition contained in this Lease, and, if so, specifying
each such default of which notices to Tenant should be sent or which is known to
Tenant, and (v) giving such other information concerning this Lease and the
leased premises as Landlord, or the addressee of the statement, shall reasonably
request, including, without limitation, the above information with variations in
style or wording. Any such statement delivered pursuant hereto may be relied
upon by any owner of the Shopping Center, any prospective purchase of the
Shopping Center, any mortgagee or prospective mortgagee of the Shopping Center,
or any interest therein, or any prospective assignee of any such mortgagee.
51. Waiver of Jury Trial. Tenant hereby waives all right to trial by
jury in any claim, action, proceeding or counterclaim by either Landlord or
Tenant against the other, or any matters arising out of or in any way connected
with this Lease, the relationship of Landlord and Tenant and/or Tenant's use or
occupancy of the leased premises.
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53. Miscellaneous.
(A) Any party may act under this Lease by its attorney or agent
appointed by an instrument executed by such party.
(B) Whenever the word "including" is used herein, it shall be
deemed to mean "including but not limited to".
(C) The words "re-enter" and "re-entry" as used herein shall not be
restricted to their technical legal meaning.
(D) This Lease has been executed in several counterparts; but the
counterparts shall constitute but one and the same instrument.
(E) This Lease shall be construed under the laws of the State of
Maryland.
(F) The paragraph captions and heading hereof are for convenience
of reference only and shall not be deemed to limit, affect or interpret the
provisions of this Lease.
(G) All power of approval and consent herein conferred on Landlord,
and any exercise thereof and conditions imposed in granting same, are solely
for Landlord's protection and benefit, and shall not constitute a representation
or warranty of any kind from Landlord or its agents or representations as to the
legality , technical sufficiency, accuracy, compliance with life-health-safety
requirements or any other matter concerning any plans, specifications, assignee,
sublessee, instruments, financial statements, insurance policies or other
matters to which such consent, approval or conditions apply.
(H) Regarding all covenants, agreements, obligations, performance
and undertakings of Tenant under this Lease, time is hereby agreed to be of the
essence.
54. Hazardous Materials. Tenant shall not install in, on or about the
premises any hazardous materials, including but not limited to asbestos, PCB'S,
UREA formaldehyde insulation, lead-based paint or any other toxic or hazardous
materials or substances of any kind; or any other materials which violate laws
or may be required to be removed from the demised premises by applicable laws.
Tenant at its own expense shall remove such items promptly on Landlord's request
and shall indemnify, defend and hold harmless Landlord and its agents, partners
and mortgagees therefrom and from all loss, cost, damage, liability and expense
arising therefrom.
(Signature Page to Follow)
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IN WITNESS WHEREOF, the parties hereto have duly signed these presents
and affixed their respective seals on the date first above written.
WITNESS: LANDLORD:
PIKE SHOPPING CENTER LIMITED PARTNERSHIP
By: /s/ XXXXX X. XXXXX (SEAL)
-------------------- ---------------------------
Xxxxx X. Xxxxx, General Partner
By: XXXXX MANAGEMENT, INC.
(General Partner)
By: /s/ XXXXX X. XXXXX
--------------------------
Xxxxx X. Xxxxx, President
ATTEST: TENANT:
/s/ XXXXXX XXX XXX By: /s/ XXXXX X. XXXX (SEAL)
-------------------- --------------------------
Xxxxxx Xxx Xxx Bank of Baltimore Xxxxx X. Xxxx
Vice President Title: Senior Vice President
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EXHIBIT "A"
Common Area Maintenance Costs
Common area maintenance costs shall include all costs and expenses of
every kind and nature as may be paid or incurred by Landlord in operating,
policing, protecting, managing, equipping, lighting, repairing, replacing and
maintaining the common areas and facilities, including, but not limited to, the
cost and expense of:
(i) operating, maintaining, repairing, replacing, lighting,
cleaning, sweeping, painting and resurfacing of the common areas and facilities,
including, but not limited to: parking lots, curbs, gutters, sidewalks, paving,
vehicle area lighting facilities, lighting and sound facilities, storm and
sanitary drainage systems and other utility conduits, systems, ducts and similar
items, fire protection systems, sprinkler systems, utility sprinkler and
security alarm systems, Shopping Center signs on and off the Shopping Center
site, retaining walls, curbs, gutters, fences, sidewalks, canopies, steps, and
ramps in the common areas, exclusive of casualty loss replacement covered by
insurance;
(ii) a reserve for resurfacing the parking lot, curbs, gutters
and sidewalks calculated on a 10-year life (which reserve will be maintained in
a separate interest-bearing account for the purpose of paying said expenditures
when they occur);
(iii) gardening, landscaping and maintenance of grass, trees
and shrubbery;
(iv) all premiums for all insurance maintained by Landlord in
connection with the Shopping Center, including, without limitation: liability
for bodily injury, death and property damage; insurance on the Shopping Center
(including the common areas) against fire, extended coverage, theft or other
casualties; xxxxxxx'x compensation; plate glass insurance for glass exclusively
serving the common areas; sign insurance; and (if available and deemed advisable
by Landlord) loss of rent insurance for up to a 12-months period;
(v) security;
(vi) personal property taxes on equipment and system in,
pertaining to, or used in maintaining and operating the common areas and outdoor
areas;
(vii) utility charges and other costs of lighting the common
areas, the vehicle areas, Shopping Center signs and other like facilities;
(viii) vehicle area line painting, and removal of snow and
ice;
(ix) collection and removal of trash from all outdoor arms in
the Shopping Center;
(x) equipment, machinery and supplies used in the operation
and maintenance of the common areas (including cleaning and snow removal
equipment) and of Shopping Center signs, fixtures and furnishings (including the
cost of inspection and depreciation thereof unless the original cost was
included in the common area maintenance costs, which depreciation shall be
calculated on a straight-line basis and on lives based upon the Internal Revenue
Service guidelines from time to time extant);
(xi) power and fuel for operating common area equipment and
systems, and for operating vehicles and equipment used for cleaning, maintenance
and snow removal; and
(xii) salaries of personnel directly engaged in operating,
cleaning and maintaining the common areas (including security personnel and
parking attendants), and all related payroll charges, benefits and taxes.
(xiii) real estate taxes and assessments pertaining, to the
common areas, to the extent not included in Article 11 of the Lease.
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EXHIBIT "B"
RULES AND REGULATIONS
Tenant shall, at all times during the term of the Lease:
1. Use, maintain and occupy the premises in a careful, safe, proper and
lawful manner, and keep the premises and its appurtences in a clean and safe
condition;
2. Keep all glass in the doors and windows of the premises clean and in
good repair;
3. Not place, maintain or sell any merchandise in any vestibule or
entry to the premises, on the sidewalks or mall areas adjacent to the premises,
or elsewhere on the outside of the premises without the prior written consent of
Landlord;
4. Keep the premises in a clean, orderly and sanitary condition, free
of insects, rodents, vermin and other pests;
5. Not permit undue accumulations of garbage, trash, rubbish and other
refuse; and will keep such items in closed containers within the interior of
the premises until removed;
6. Not use, permit or suffer the use of any apparatus or instruments
for musical or other sound reproduction or transmission in such manner that the
sound emanating therefrom or caused thereby shall be audible beyond the interior
of the premises;
7. Light the show windows and exterior signs of the premises to the
extent required in the Lease;
8. Keep all mechanical apparatus free of vibration and noise which may
be transmitted beyond the confines of the premises;
9. Not cause or permit objectionable odors to emanate or be dispelled
from the premises;
10. Not overload the floors or electrical wiring, and not install any
additional electrical wiring or plumbing, without Landlord's prior written
consent;
11. Not use show windows in the premises for any purpose other than
display of merchandise for sale in a neat and attractive manner;
12. Not conduct or permit any public or private auction to be conducted
on or from the premises; and
13. Not solicit business in the common areas of the Center or
distribute handbills or other advertising materials in the common areas, and
if this provision is violated, Tenant shall pay Landlord the cost of collecting
same from the common areas for trash disposal.
14. All loading and unloading of goods shall be done in Tenant's
loading area, except for customer pick up and deliveries.
15. No aerial shall be erected on the roof or exterior walls of the
premises, or on the grounds, without in each instance, the written consent of
Landlord. Any aerial so installed without such written consent shall be subject
to removal without notice at any time.
16. No loud speakers, televisions, phonographs, radios or other devices
shall be used in a manner so as to be heard or seen outside the premises without
the prior written consent of Landlord.
17. If the leased premises are equipped with heating facilities
Separate from those in the remainder of the Shopping Center. Tenant shall keep
the leased premises at a temperature sufficiently high to prevent freezing of
water pipes and fixtures.
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18. The plumbing facilities shall not be used for any other purpose
than that for which they are constructed, and no foreign substance of any kind
shall be thrown therein, and the expense of any breakage, stoppage or damage
resulting from a violation of this provision shall be borne by Tenant, who
shall, or whose employees, agents or invitees shall, have caused it.
19. Tenant shall not burn any trash or garbage of any kind in or about
the leased premises, the Shopping Center, or within one mile of the outside
property lines of the Shopping Center.
